ENTERTAINMENT AND SPORTS LAW: The Copyright Implications of Tattoos

Volume 29Number 5

In the 2009 film The Hangover, after a particularly unruly bachelor party in Las Vegas, the film’s main characters wake up unable to determine what happened the night before. Upon realizing that they have kidnapped Mike Tyson’s tiger, they endeavor to return the tiger to its master. Tyson’s subsequent appearance in the film contributes substantially to the protagonists’ “What Happens in Vegas, Stays in Vegas” experience, and Tyson’s famous facial tattoo is featured prominently in Tyson’s scenes.

In the 2011 sequel, The Hangover Part II, the main characters once again wake up in unfamiliar surroundings and try to piece together their previous night. The character played by actor Ed Helms wakes up with a facial tattoo closely resembling Tyson’s. The Helms tattoo was featured prominently in the movie poster and trailer for The Hangover Part II. Just over a month before the scheduled release of The Hangover Part II, S. Victor Whitmill, the tattoo artist who created the Tyson tattoo, sued Warner Brothers for copyright infringement.

As works of art, tattoos fall within the realm of copyrights. However, the copyrightability of tattoos, the ownership of these rights, and the corresponding application of existing copyright doctrine to tattoos are still largely issues of first impression for the courts. For the reasons discussed below, although it is likely that Whitmill did indeed own the copyrights to the Tyson tattoo, it is unlikely that he would have been able to obtain substantial damages from Warner Brothers had the case gone to trial.

Copyrightability of tattoos. A first issue raised in the dispute over The Hangover Part II is whether tattoos are indeed copyrightable, and, if so, who owns those copyrights. Under Section 102 of the U.S. Copyright Act, copyright protection extends to “pictorial, graphic, and sculptural works” that are fixed in a tangible medium. That is, the medium must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The creativity threshold for protection is very low, as only “independent creation plus a modicum of creativity” is required.

Under these standards, tattoos are permanent at least for the life of the recipient, and they are undoubtedly fixed in a tangible medium. Also, the Tyson tattoo was a pictorial work and very likely exhibited at least a “modicum of creativity.”

Ownership. The question then arises as to who owns tattoo copyrights—the artist or the recipient?

The default rule is that copyright ownership extends to the artist unless there is an agreement to the contrary or the work in question is a “work for hire.” The “work for hire” designation applies to a narrow set of circumstances, when the work in question is (1) prepared by an employee within the scope of his or her employment or (2) specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. The second category also requires a written agreement between the parties specifying that the work is a work for hire.

The Tyson tattoo does not fall within any of these categories. First, there was no agreement assigning Whitmill’s copyrights to Tyson. Second, regarding the “work for hire” designation, Whitmill was an independent contractor and not an employee of Tyson, the Tyson tattoo does not fall within any of the enumerated categories, and there was no agreement classifying the Tyson tattoo as a work for hire. Thus, the default rule applies, and Whitmill, the artist, retains the copyrights to his work.

What rights are conferred by tattoo copyrights? U.S. copyright laws afford a “bundle of rights” to copyright holders, which include the rights to (1) reproduce a work, (2) prepare derivative works, (3) distribute copies of the work, (4) publicly perform the work, and (5) publicly display the work. Thus, on its face it would seem that Whitmill as a tattoo artist would retain substantial control over Tyson’s ability to appear in public, to be photographed, etc. The norms of tattooing, however, necessitate that some of these artist-held copyrights must pass at least partially to the tattoo recipient through an implied license.

The human body is a peculiar artistic medium. The tattoo artist knows that the recipient will likely be seen in public and will likely be photographed or videotaped—all of which involve copying the tattoo, implicating the rights of reproduction and public display. This is especially true if the recipient is a celebrity. Additionally, tattoo purchasers often intentionally choose tattoo locations on their body that are clearly visible to the public. Thus, it is implicit in obtaining a tattoo that one expects to be able to be seen and to be photographed. The implied license must therefore extend at least to public display and limited reproduction via photographs and videotaping.

Warner Brothers’ liability. Even though the implied license likely did not extend from Tyson to Warner Brothers, it is likely that Warner Brothers’ use of the Helms tattoo constituted fair use, and even if the Helms tattoo did not constitute fair use, it is unlikely that Warner Brothers’ use of the Helms tattoo in The Hangover Part II would have yielded substantial damages for Whitmill.

The following factors are considered in a fair use analysis: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use on the potential market for or value of the copyrighted work. The factors seem evenly split between Warner Brothers and Whitmill. However, under the first factor, the more transformative that a new work is, the less significance is placed on the remaining fair use factors that may otherwise weigh against a finding of fair use. The use of the Helms tattoo in The Hangover Part II was arguably transformative to the extent that it parodied the Tyson tattoo. Thus, it seems likely that Warner Brothers would have ultimately prevailed on its fair use defense.

Copyright owners are entitled to actual damages and profits of the infringer or to statutory damages, pursuant to which the copyright owner need not show any actual damages. However, no statutory damages are awarded for any infringement “commenced after first publication of the work and before the effective date of its registration[.]” Whitmill applied the tattoo to Tyson in 2003 but did not obtain a copyright registration until April 19, 2011, and Warner Brothers had no doubt begun filming The Hangover Part II at least as far back as 2010 , thus precluding availability of statutory damages.

Regarding Warner Brothers’ profits, under 17 U.S.C. s. 504(b), “[t]he copyright owner is entitled to recover the actual damages suffered by him” as a result of the infringement. However, The Hangover Part II increased Whitmill’s stature and visibility as a tattoo artist, effectively increasing the value of the Tyson tattoo and further diminishing Whitmill’s claim.

Thus, if the case had proceeded to trial, Whitmill would likely have been able to demonstrate copyright ownership, but he would have had to overcome considerable hurdles to obtain significant damages stemming from the use of the Helms tattoo in The Hangover Part II.

ABA Entertainment and Sports Industries Forum

This article is an abridged and edited version of one that originally appeared on page 1 of Entertainment and Sports Lawyer, Fall 2011 (29:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Books and Other Recent Publications:The American Bar Association’s Legal Guide to Independent Filmmaking; Entertainment Law for the General Practitioner; The American Bar Association’s Legal Guide to Video Game Development.